Diwali, Crackers and Pollution–Truth uncovered! (Part IV): Precautionary Principle Paradox

    15-Nov-2020
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Ashish Naredi

Three parts on the subject, covered till now, would have given the readers a good idea about the reasons for the ban on crackers – all of which,on close examination, are found to be hollow and facetious.

The petitioners and the Court too, perhaps, realise that the reasons and the datacited in their favour do not cut much ice.That is why they have employed something called as the “Precautionary Principle,” –the application of which required no data, proof or reasoning other than the subjective opinion of a few.

 
This part of the article series, delves deeper into Precautionary Principle and its application in the case of fireworks.
 
What is Precautionary Principle[1](PP - from hereon)?
 
PP, in simple terms, is nothing but the adage “Prevention is better than cure.”
 
However, in cases where the environment is concerned and where there is a threat of severe and irreversible damageto the environment, this principle is used, as a part of accepted law, to take preventive action of regulating/stopping a certain activity/project/product – even if there is not enough scientific evidenceto establishpotential harm.
 
In other words, PP is like a mixture of Preventive Detection Act and UAPA (Unlawful Activities Prevention Act) – a deadly combination under which,anyone can be arrested on the basis of a mere suspicion and the burden of providing proof of innocence also placedon the arrested.
 
Paradox of using PP in the case of fireworks
 
From a reading of the judgments we note that, both - the petitioners and the Court–are unequivocal in their assertionsabout there being enoughscientific data available,to link crackers not only to pollution, but also to the great damagecaused to human health.
 
Extract from para # 30 of 2018 judgment
 
“…This again indicates a definite causal connection between burning crackers during Diwali and air pollution.”
 
Extract from para # 31 of 2018 judgment
 
“The aforesaid findings are sufficient to negate the arguments of the opposite side that there is absence of scientific study about the adverse effect of crackers during Diwali.”
 
Despite such emphatic assertions,both – the petitioners and the Court – have sought the cover of PP not onlytojustify the use ofpreventive measures, but also to cover for the lack of sufficient data/proof!
 
Para# 31 of the 2018 judgment further reads as:
 
“It is rightly argued by the petitioners that this principle (PP) does not need exact studies/material. The very word ‘precautionary’ indicates that such a measure is taken by way of precaution which can be resorted to even in absence of definite studies!”
 
If the data used by petitioners is as definite as they claim it to be, then why is there a need for them to take shelter of PP, specifically, to cover for inadequacy of data?And by their very act of using PP in this manner,do they not betray the lack of confidence they have in their own claims& data?
 
Be that as it may, since the Court has used PP, let us also examinethe merits of its usagein the present context.
 
Flaws in application of PP to fireworks
 
There are a few key elements in the application of PP[2]. These are:
 
1. The damage or the threat of damage has to besevere & irreversible
 
2. Full assessment of threat may not be possible due to inadequacies of science[3]
 
3. Because of #2 above, the “burden of proof” is placed on the entity seeking to alter status-quo[4]

Points #1  above flow from #2.Only because of aninadequacy of scientific method or means to measure potential harm, are we required to shift the burden of proof[5]onto the proponent of the activity or onto the entity seeking to alter the status-quo. Hence, let us first see, if and what the inadequacy of science is in this case.

The key metrics needed to be evaluated here are:

 
A. Percentage contribution of a sourceto air pollution: This is widely measured, used and even reported in multiple court cases, including those in the NGT and the Supreme Court. Some such instances are given below:
 
· Vehicular pollution contributes nearly 20% of total air pollution load in NCT Delhi[6].
 
· 13 power plants around Delhi contribute 80% of the Sulphate and 50% of the Nitrogen to receptor concentration.[7]
 
· Transport sector contributes 41%, wind-blown dust 21.5 % and Industries 18.6 % to PM 2.5 Pollution in Delhi.[8]
 
It should, thus, be absolutely clearto anyone and everyone that there is, most definitely, no inadequacy of science in measuring this metric. Why then, I wonder,has no one till now bothered to ask the most basic and criticalof allquestions:
 
What is the percentage contribution of fireworks to the air pollution in Delhi and India?
 
Maintaining ambiguity by not quantifying the percentage of pollution, perhaps, helps the vested interests by enabling them to substitute hard data withempty rhetoric like - “..even if crackers are not the only cause of pollution andeven if the pollution caused is less,banning crackersonly makes the environment cleaner, no matter by how small a factor. Afterall, every drop counts!"- and so on and so forth..”

B. Effect of fireworks on health: This can also be easily evaluated. In fact, as shown earlier, it has been evaluated by the Supreme Court appointed committee in this very case itself.(It reported that there is no adverse impact of bursting fireworks on human health)[9].

Thus, it becomes fairly evident that there is absolutely no inadequacy of science in this case - neither in measuring the contribution of fireworks to air pollution nor in measuring their impact on environment or on human health.

Why then would anyone use Precautionary Principle and plead inadequacy of data, as has been done in this case, seems truly baffling to me.It seems almost as if the data dished out by the reports furnishedwas not to the liking of some.Hence, PP was brought inmore as a decoy to discredit the otherwise credible data and not because there was an actual lack of data.

The above, nonetheless, is not the end of errors in the application of PP to this case. There is more gore.

 
No one seems to have paid adequate attention to #3 above that the “burden of proof is on the entity which changes status-quo!” Do look back and checkwhich entity changed the status quo here. Fireworks have been in use in India and the world for several centuries now without any problem.And if there is a change in status-quo here, then it has been done by the Courts. So, logically, it should now be the Courtswhich should bear the “burden of proof!” Sounds absurd!

Perhaps, because, common sense dictates thatit is only the proponent of an activity who can change the status-quo by initiating some new– a new action/formulation.Let’s look at some of the caseswherePPhas been applied, for more clarity:

 
· MC Mehta (Lakes case)[10]New construction was sought to be done near lakes but was stopped.
 
· AP Pollution Control Board Vs Prof M V Nayudu case[11]New chemical factory was sought to be set up but was stopped.
 
· Blues sea Turtle Fishing case between Japan & New Zealand[12]New eco sensitive area was being tapped for fishing but was stopped!
 
· Large Hadron Collider case[13]New equipment, was sought to be used at CERN for experiments and was allowed by refusing to apply PP.
 
The key element, as you would note, is that- there is something “new”which was initiated by the proponent of the activity in each of the above cases. That there could ever be a case like the present one of fireworks - where the status quo has been changed by a party other than the proponent of the activity, that too without the proponent initiating anything new, would perhaps have been unimaginable for the proponents of the Principle.

To summarise:

When there is found:

 
1. No new activity/formulation introducedin fireworks;
 
2. No inadequacy of science in measuring any metric - be it a) percentage contribution to air pollution or b) impact on human health; and
 
3. No adverse effect of bursting fireworks on human healthat all, leave aside severe and irreversible damage, as is required;
then, surely, there remains no case, whatsoever, for application of Precautionary Principle. And when you combine the above with the fact that:
 
1. IIT Kanpur has measured and found the percentage contribution of fireworks to air pollution in Delhi - to be almost zero, if not zero (see Part 2); and
 
2. A committee appointed by the Supreme Court itself has found no adverse effect of bursting fireworks on human health (see Part 2);
then, there remains no ground for the case itself!


(Next – How other nations handle fireworks.)



[1] https://www.lawctopus.com/academike/precautionary-principle/

[2] Ibid.

[3] Para 34 of the October 2018 judgment in the present case- “inadequacies of science is the real basis that has led to the precautionary principle in 1982.”

[4] Ibid. The SC also subscribed to this view in the Vellore Citizens Welfare Forum Vs Union of India case.

[5]Ibid.

[7]Ibid. Point #8

[11] Ibid.